*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 24 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. DANIEL ADAM WARD, Defendant-Appellant. No. 98-6075 (W.D. Okla.) (D.Ct. No. CIV-97-1422-C)

____________________________ ORDER AND JUDGMENT *

Before SEYMOUR, BRORBY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Daniel Ward, a federal inmate, appeals the districtcourt’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside or correc t his sentence. On careful review, we deny Mr. Ward’s application for a certif icate of appealability for failure to demonstrate a substantial showing of a d enial of a constitutional right and dismiss his appeal.

A jury convicted Mr. Ward on multiple drug-traffick ing counts, and the court sentenced him to 292 months imprisonment. United States v. Ward, 92 F.3d 1197 (10th Cir. 1996) (unpublished decision). His direct appeal centered, in part, on the district court’s calculation of his sentence using a base offense level for dmethamphetamine rather than the weaker drug, l-meth amphetamine. Because Mr. Ward’s counsel made no objection at sentencing as t o the type of methamphetamine used, we found the issue foreclosed by our holding in United States v. Deninno , 29 F.3d 572, 580 (10th Cir. 1994), cert. denied, 513 U.S. 1158 (1995), and affirmed his sentence.

Unsuccessful in his direct appeal, Mr. Ward then fi led this § 2255 action, raising two claims of ineffective assistance of cou nsel with respect to his sentencing. First, he claims he was prejudiced by his attorney’s failure to object1 Mr. Ward contends the district court should calculate his sentence on only the

658.93 grams actually proven to be d-methamphetamine. The remaining 14.28 grams of methamphetamine, he contends, should be treated as l-methamphetamine because (1) it was not tested or proven to be d-methamphetamine at either the trial or sentencing hearing; and (2) some trial witnesses testified the methamphetamine supplied to them by Mr. Ward was poor quality.

2Amendment 518 of the United States Sentencing Guidelines, effective November 1, 1995, states, in pertinent part: “L-methamphetamine, which is a rather -3- to the type of methamphetamine considered in his se ntencing. 1 Mr. Ward relies on this court’s decision in his prior appeal and United States v. Glover , 97 F.3d 1345 (10th Cir. 1996), to support this claim. Seco nd, Mr. Ward argues he was prejudiced by his attorney’s failure to object to t he district court’s consideration of a prior, uncounseled misdemeanor conviction in d etermining his criminal history score. Mr. Ward contends his prior convict ion cannot be used because it did not involve a knowing and intelligent waiver of counsel as required under Faretta v. California , 422 U.S. 806, 836 (1975), for a custodial sentenc e. Mr. Ward contends he only waived his right to counsel b ecause of the promise of receiving a sentence of “time served.”

The district court, in addressing Mr. Ward’s claims of ineffective counsel, acknowledged that, under Glover , an ineffective counsel claim may exist if counsel fails to object and no determination is mad e whether a “botched” attempt to produce d-methamphetamine results in a weaker fo rm of methamphetamine. 2weak form of methamphetamine, is rarely seen and is not made intentionally, but rather

results from a botched attempt to produce d-methamphetamine.”
-4- Cf. Glover , 97 F.3d at 1349-50. However, the district court found in this case “the record clearly shows that the drugs involved w ere d-methamphetamine.” For that reason, the district court determined Mr. Ward suffered no prejudice by his counsel’s failure to object to the type of methamph etamine to be considered at sentencing.

The district court next considered Mr. Ward’s ineff ective assistance of counsel claim with respect to his attorney’s failur e to object to use of his misdemeanor conviction in sentencing. On review of the facts, the district court found Mr. Ward served five days in jail on a convic tion for driving under the influence. The court determined Mr. Ward was advis ed of his right to counsel, and knowingly and intelligently waived that right. Applying the United States Sentencing Commission Guidelines Manual, § 4A1.2, the district court found Mr. Ward’s “uncounseled” conviction appropriate for use in determining his criminal history score.

When reviewing the denial of a § 2255 motion, we re view the district court’s legal rulings de novo , and its factual findings for clear error. See United-5-

States v. Cox , 83 F.3d 336, 338 (10th Cir. 1996). Ineffective a ssistance of counsel claims involve mixed questions of law and f act, which we review de

novo . See United States v. Prows , 118 F.3d 686, 691 (10th Cir. 1997). To succeed on an ineffective assistance of counsel cla im, Mr. Ward must show (1) his attorney’s performance was deficient, thus fall ing below an “objective standard of reasonableness,” Strickland v. Washington , 466 U.S. 668, 687-88 (1984), and (2) the deficient performance prejudice d his defense such that, but for the error “the result of the proceeding would have been different.” Id. at 687, 694. We consider the totality of the evidence in d etermining whether Mr. Ward was prejudiced. Id. at 695.

A review of the record establishes the government p resented expert testimony on the type of methamphetamine involved. While the government did not test all the methamphetamine attributed to Mr. Ward, it did test three samples of confiscated methamphetamine which proved to be d -methamphetamine. A methamphetamine distributor and key witness for the government testified he himself normally tested the methamphetamine purchas ed from Mr. Ward, and he continued to purchase it because of (1) its good qu ality, and (2) it could be “cut ... in two.”-6-

Conversely, the record also establishes the same wi tness stated the quality declined when purchased through a middle man named T.J. Langston, who admittedly mixed the methamphetamine bought from Mr . Ward. Other witnesses testified they purchased good methamphetamine from Mr. Ward, but on occasion the quality was poor, the quality declined when pur chased through Mr. Langston, or, as in one instance, a poor product was replaced with better quality methamphetamine. Mr. Ward relies on this testimony concerning poor quality methamphetamine to support his claim.

At sentencing, the trial judge, as fact finder, has discretion to resolve all conflicting testimony, to weigh the evidence, and t o draw inferences from the basic facts to the ultimate facts. See United States v. Nieto , 60 F.3d 1464, 1469 (10th Cir. 1995), cert. denied, 516 U.S. 1081 (1996). Similarly, credibility determinations are within the sound discretion of t he judge. See United States v. Gobey , 12 F.3d 964, 967 (10th Cir. 1993). We review the sentencing court’s factual findings as to the type or quality of metha mphetamine for clear error. See United States v. Morales , 108 F.3d 1213, 1225 (10th Cir. 1997). To constit ute clear error, we must be convinced the sentencing co urt’s findings are simply not plausible or permissible in light of the entire rec ord on appeal, remembering we are not free to substitute our judgment for that of the district court. Id.-7-

Moreover, we must view all disputed evidence and re asonable inferences drawn from the evidence “in the light most favorable to t he government.” United States v. Gay , 774 F.2d 368, 372 (10th Cir. 1985). Viewing the record in this light and giving appropriate deference to the district court, we conclude the district court’s finding the methamphetamine was d-methamphetamine w as not clearly erroneous.

Mr. Ward relies on Gloverto support his ineffective assistance of counsel claim. However, both defendants in Gloverwere sentenced without any proof or finding regarding the nature or type of methampheta mine. See 97 F.3d at 1348, 1350-51. Here, the government introduced evidence, including expert testimony, on the type or quality of methamphetamine distribut ed by Mr. Ward. Given the district court’s supportable finding the methamphet amine was “clearly” dmethamphetamine, we cannot say Mr. Ward’s attorney’ s failure to object to the type of methamphetamine prejudiced him such that, b ut for the error “the result of the proceeding would have been different.” Strickland, 466 U.S. at 687, 694. In considering the totality of the evidence, we find M r. Ward was not prejudiced.

With respect to Mr. Ward’s second claim, we conclud e counsel’s failure to object to the use of Mr. Ward’s prior “uncounseled” conviction did not prejudice him. We have interpreted the holding in Nichols v. United States , 511 U.S. 738-8-

(1994), to mean “‘prior uncounseled misdemeanor con victions that are themselves constitutionalmay be used to enhance punishment for subsequent c onvictions.’” United States v. Windle , 74 F.3d 997, 1001 (10th Cir.), cert. denied, 517 U.S. 1115 (1996) (emphasis added) (quoting United States v. Lockhart , 37 F.3d 1451, 1454 (10th Cir. 1994)). Under this analysis, Mr. W ard cannot successfully assert prejudice by counsel’s failure to object, unless hi s waiver was unconstitutional, as he now claims.

On review of the record concerning the circumstance s surrounding Mr. Ward’s waiver of counsel preceding his prior misdem eanor conviction, we find nothing to indicate his waiver was unconstitutional . On August 5, 1988, Mr. Ward signed a waiver informing him of his right to have an attorney, and acknowledging he waived his right with “full knowle dge and understanding.” The waiver included his declaration that no one pro mised him a lighter sentence or any favor to induce him to sign the waiver. The record does not contain the exact colloquy at his hearing, but it does show the court informed Mr. Ward as to the “perils, pitfalls, dangers and disadvantages of self-representation” and his right to have an attorney at all stages of the proc eeding, including a courtappointed attorney, as well as other constitutional rights. At the hearing, Mr. Ward acknowledged his understanding of his waiver, and stated he voluntarily,-9-

intelligently, and expressly waived the right to co unsel. Other than Mr. Ward’s own declaration, filed nine years after his convict ion, nothing in the record establishes the trial court improperly directed him to waive his right to counsel in exchange for a sentence of time served.

Where the record clearly shows right to counsel was expressly waived, the defendant has the burden of showing his waiver was not knowingly and intelligently made, or is otherwise constitutionall y infirm. See United States v. Williamson , 806 F.2d 216, 220 (10th Cir. 1986). Mr. Ward has failed to carry that burden. He has failed to (1) show the waiver was n ot knowingly, intelligently or voluntarily made; (2) provide actual evidence, othe r than his declaration, suggesting he waived counsel under improper pretens e or expectation; or (3) cite any authority establishing the sentencing court mus t inform Mr. Ward of every future application or ramification of his waiver, i ncluding the fact an uncounseled conviction may be used to score his criminal history at a later date. In sum, even if his counsel raised an objection to use of his pr ior conviction, Mr. Ward has not shown “the result of the proceeding would have been different.” Strickland, 466 U.S. at 687, 694. Accordingly, the district court properly determined Mr. Ward experienced no prejudice by his counsel’s failure t o object to the use of his prior, uncounseled conviction to score his criminal history. See Windle , 74 F.3d at-10-

1001.

For these reasons, we deny Mr. Ward’s application f or a certificate of appealability for failure to demonstrate a substant ial showing of a denial of a constitutional right, and DISMISS this appeal.

Entered by the Court: WADE BRORBY United States Circuit Judge